1. The plaintiffs in O. S. No. 1 of 1946 in the Court of the Subordinate Judge of Masulipatam appeal against the decree of the learned Judge dismissing their suit brought for setting aside the decree in O. S. No. 33 of 1936 on the file of the same Court obtained by defendant 1 against them and defendants 2 and 3. The plaintiffs are the sons of defendant 2. Defendant 1 instituted O. S. No. 33 of 1936 above mentioned to recover a sum of Rs. 14893-13-6 due under two promissory notes dated 5th March 1930 executed by defendant 2, i.e., the father of the plaintiffs in her favour for Rs. 8703-3-3 and Rs. 605-9-3 respectively. As the father had been adjudicated insolvent, the Official Receiver was also made a party. The plaintiffs were all minors on the date of the institution of that suit and they were represented by their mother as their guardian. She filed a written statement in which three defences were raised, viz., (1) that the amounts under the promissory notes were borrowed for illegal and immoral purposes, (2) that the promissory notes were barred by limitation so far as the minor sons were concerned because the acknowledgment made thereon by the father was after a petition to adjudicate him an insolvent had been presented and (3) that the rate of interest was usurious. Though she filed the written statement, she did not appear at the time of the trial in person or by advocate and an ex parte decree for the amount as prayed for was passed on 14th August 1937. The plaintiffs' mother thereafter filed an application for setting aside the ex parte decree. The learned Subordinate Judge by his order dated 4th November 1937 directed that the said ex parte decree be set aside on condition of a deposit of Rs. 200 being made in Court within ten days of the date of the order and on default of such deposit, the application was to stand dismissed with costs. The amount was not deposited and the ex parte decree was not set aside. Soon thereafter, Madras Act 4 of 1938 came into force and immediately after that the mother on behalf of the plain-tiffs, applied to the Court for scaling down the debt. Eventually the debt was scaled down with the result that the entire amount payable under the decree was about Rs. 5000. After these proceedings, the plaintiffs commenced the present suit out of which this appeal arises for setting aside the decree on the ground that their guardian had acted in a grossly negligent manner.
2. In the plaint it was alleged that there was a secret arrangement between defendant 2 and the brother of defendant 1 under which defendant 2 promised to amicably settle the suit debt and other debts and on the faith of such representation, the mother of the plaintiffs was induced to remain ex parte and to suffer the decree. It was further alleged that the conduct of the guardian in not defending the suit was recklessly and grossly negligent.
3. At the trial the plaintiffs gave up the contention that there was a arrangement between defendant 1's brother and defendant 2. Therefore all that remained was to determine whether there was gross negligence on the part of the guardian of the plaintiffs' mother who represented them as their guardian was guilty of gross negligence and fraud.
4. The parties did not adduce any oral evidence in the case. The plaintiffs were content to file a copy of the pleadings and other papers in O. S. 33 of 1936. The learned Subordinate Judge found that the plaintiffs on whom certainly the onus lay, had not established that their mother was guilty of gross negligence or fraud in the conduct of the prior suit and dismissed O. S. No. 1 of 1946.
5. The only question which arises in this appeal is whether on the facts appearing from the documentary evidence, it can be held that the plaintiffs' mother was guilty, of any negligence or fraud. Appellants' counsel contended that the fact that certain defences were raised by the guardian coupled with the fact that eventually she did not adduce any evidence or try to establish those defences is itself proof of negligence. We cannot agree. If the guardian raises frivolous defences and subsequently is convinced that it was not worthwhile proceeding with those defences, it cannot be said that the guardian would be guilty of negligence. Before we can hold that the failure to defend is evidence of gross negligence, we must be convinced that there were substantial defences to the action and nevertheless, the guardian failed to advance and establish them Let us take the defences which were raided by the plaintiffs' guardian in the prior suit.
6. There is nothing in the plea that the payments made by the father on the promissory note were on 4th March 1933, two days after the presentation of the insolvency petition. It was admitted that the father was not adjudicated till several months later. Simply because an insolvency petition had been filed against the father, he does not lose his right to make a part payment towards a debt or to acknowledge a debt so as to enlarge the period of limitation not only against himself but also against his sons. As regards the other ground of illegality and immorality, it is obvious that from a mere allegation in a written statement, it cannot be assumed that the plaintiffs had a good case. At the trial of the suit, the plaintiffs did not care to adduce any evidence to show that they had a substantial defence on this ground. There is, therefore, nothing in the evidence to lead us to the conclusion that the plaintiffs had a good case, that the guardian knew that they had but did not take any step to establish the defence.
7. As regards the last of the defences based on the provisions of the Usurious Loans Act, the matter has become academical because of the application of Madras Act 4 of 1938 to the case. It surely cannot be contended that any relief which the plaintiffs could have obtained under the Usurious Loans Act would have been so large as the relief which they eventually obtained under the provisions of Madras Act 4 of 1938.
8. In the circumstances we entirely agree with the learned subordinate Judge that the plaintiffs have failed to establish gross negligence or fraud on the part of their mother as puardian in the conduct of the previous suit. The appeal fails and is dismissed with costs of respondent 1.